Esping v. Elizabeth Soc'y for Prevention of Cruelty to Children

• Decision Date: 21 February 1910
• Citation: 79 N.J.L. 357,75 A. 547
• Parties: ESPING v. ELIZABETH SOCIETY FOR PREVENTION OF CRUELTY TO CHILDREN et al.
• Court: New Jersey Supreme Court

75 A. 547

79 N.J.L. 357

ESPING

v. ELIZABETH SOCIETY FOR PREVENTION OF CRUELTY TO CHILDREN et al.

Supreme Court of New Jersey.

Feb. 21, 1910.

Certiorari to Police Court of Elizabeth.

Certiorari by Annette Esping against the Elizabeth Society for the Prevention of Cruelty to Children and others to review a conviction. Conviction set aside.

Argued November term, 1909, before SWAYZE, TRENCHARD, and PARKER, JJ.

John J. Stamler, for prosecutrix.

James C. Connolly, for defendants.

PARKER, J. The prosecutrix sues out this writ to review her conviction before the police court of the city of Elizabeth of cruelly treating her minor child. The conviction is based on the act of 1880 (Gen. St. p. 1717), a fine of $5 was imposed, and the child committed to the custody of the society defendant, which was incorporated under the act of 1890 (Gen. St. p. 1720).

It is first objected that the court had no jurisdiction and the society had no standing as complainant, because both the above acts are repealed, the act of 1880 by that of 1883 (Gen. St. p. 1720); that of 1890 by subdivision 32, § 1, of the corporation repealer law (P. L. 1899, p. 193); and both by the act to incorporate societies not for pecuniary profit (P. L. 1898, p. 424). We find nothing in the act of 1883 to indicate that it is intended as a repealer of that of 1880. Section 13 of the corporation act of 1898 contains a repealer of prior inconsistent acts, but especially provides that no existing corporation shall be thereby dissolved nor shall any vested rights be impaired or annulled. Similarly the repealer of 1899 saves all such rights and powers by section 2, p. 197. There is nothing to show that the society was not incorporated until after the passage of these acts, and its corporate existence cannot be challenged without some proof. So far as appears, therefore, the complainant had legal standing, and the complaint and conviction were properly based on the act of 1880.

It is further objected that the police court bad no jurisdiction because the offenses specified in the act of 1880 are made misdemeanors, and the court is not empowered to try misdemeanors. There would be force in this objection if the act of 1883 were the one under which the conviction was had, for that act confines the trial of the offenses named therein to "any court or magistrate within this state having jurisdiction for the trial of misdemeanors," but by the act of 1880 (section 1) the trial may be had before "any justice of the peace, magistrate, or court of record." By the charter of Elizabeth (P. L. 1863, p. 128, § 48) the police court is a court of record, and by section 47 the judge has the power of a justice of the peace in criminal matters, and is consequently a magistrate. So we think that the police court was invested with sufficient jurisdiction.

But on the third ground of attack we think prosecutrix must prevail; that is, that the record of the trial and conviction is insufficient. The police judge returns this part of the record as follows: "This matter coming on to be heard before me on the 9th day of July, 1909, on the voluntary appearance of Annette Esping, and satisfactory and legal proof of the truth of the allegation in the complaint made having been produced, and Epiina Walsh. Annie McConnigal, Catherine Condon, William Boyle, Patrick Condon, Charles Jockowski, and Edward Guempel...